45 F. 332 -

45 F1d 332

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Case Text

332

FEDERAL REPORTER.

vol. 45.

The second issue which you will deHmnine from the evidence is: Did the conductor unlawfully and wrongfully refuse to sell the plaintiff a ticket entitling him to the use of one berth on the sleeper from Birmingham to Cincinnati, as alleged in the second count in the declaration, and denied by the plea of the defendant? The burden of proving this allegation in the plaintiff's declaration is on him. There being some conflict in the testimony on this point, you are instructed that, while the conductor might have sold to plaintiff a ticket entitling him to the use of this berth from Birmingham to Cincinnati before reaching the former place, he was not under any obligation to do so, and his refusal so to do created no .liability upon the defendant; but that, when the train arrived at Birmingham, and Watson's right of occupancy had ceased, and the plaintiff had applied for this or any other vacant and unoccupied berth in the sleeper, and tendered the usual fare for the use of it, and was refused by the conductor, then such refusaL would have been wrongful, and the finding on this issue should be for the plaintiff, and entitle him to such reasonable. actual damages as in your judgment, from the proof, he has sustained by reason of being deprived of the use of the berth from Birmingham to Cincinnati, less thearnount of the fare. You are further instructed that if the proof shows that application had been made for a berth in the sleeper by another man at Meridian, before the plaintiff made application, then the conductor had the right to sell the ticket for the berth. to him in preference to the plaintiff. You are the sole judges of the weight to be given to the testimony of the witnesses on both sides. You will reconcile any conflict that may exist in the testimony of the witnesses, if you can; if not, then you will determine from all the testimony which most probably gave the fa{;ts truly. In considering the testimony you will consider the interest each witness may have in the result of your verdict, the manner in which they have testified, and the reasonableness of their statements in connection ,with all the testimony.
The jury returned a verdict in favor of defendant on both COl,lnts of the declaration.

DARLING ".BUTLER.

(O£reuft Court; So

n. New York.

'

February 5, 1891.)

Where vlaintiff exeouted and delivered to defendant a deed of oertain land, the '. legal title passed, although it was i,ntended by both parties tnat the daed should not take effect until defendant made a sale of tne land for plaintiff, but the equitable title still remained in VlaintUf, and a BubsequeI!t oral sale thereof to defendant was within the statute of frauds and void, and in an action for a balance of tne purchase money a demurrer to the petition was properly sustained.

oll' FRA.UDs-EQUITABLB TITLB.

At Law.

,I

O. F. Hibbard, for plaintiff.

DARLING

11. BUTLER.

833

O. D. Barrett and Jamea P. Lewrey, for defendant.
WALLACE, J. The defendant has demurred to a complaint in an action at law to recover the price of land conveyed. The complaint alleges that December 18, 1883, at the city of Washington, the plaintiff delivered to defendant a deed conveying an undivided interest in real estate in New Mexico, known as the "Mora Grant," upon an expressed consideration of $25,000, "but the real consideration for said deed was entirely different from the consideration eXlJressed," and that at the Same time.the defendant delivered to plaintiff an agreement in writing as follows: "ReceivM, Washington. D. C.· December 18.1883. of E. M. Darling. adeed of his interest in the Mora grant of New Mexico. forthe purpose of making sale of said interest in connection with the sale of certain other interests in said grant now being negotiated by me. An.d I hereby agree. in case said sale lilhall not be cOl1summateu \Vithin a reasonable time. not to exceed six IDo.nths from the ciate thereof. to return saici deed to said. Darling; or, in case r .flnd it necessary to record said deed, I will within said time reconvey the tereSt conveyed to me by said deed; and if I sell said interest it shall be at a price not less than 75 cents per acre. 1 am to hold the deed as not delivered to me unless I shall record said deed·. In case 1 make a sale of said Darling'S be on the same terms, both as to price and payments. that I may sell S. ;8. Elkins' and Tqomas B. CatrllD'.s Interest in said lands." The complaint then alleges that in March, 1884, the defendant stated to the plaintiff that he would purchase his interest in the lands, and pay ·$75,000 therefor, and the plaintiff then agreed to; accept the said sum of $75,000 in full; that on the 15th day of January, 1885, at Washington, the defendllnt requested.the plaintiff.to throw off 85,000 from; the 875,000j which he had agreed to accept as aforesaid, reprethat Elkins and Catron had agreed to take $70,000 for their terests, and plaintiff, relying upon that statement, agreed to accept $7'0,000 in full for his interest, and the defendant then and agreed. to pay pl/l-intiff 870;000 therefor; .that defendant thereafter paidp1aintiff in' various sums at differlilnt $11,057, and "repeatedly promised the plaintiff that he would pay the full amount still unpaid of said $70,000;" The complaint further avers that the "did deliver to the defendant, and the defendant did accept from the plaintiff, actually and unconditionally, and not in escr.ow,the aforesaid deed; as and of the 15th day of January, 1885" for the consideration of $70,000,"and that the whole of said sum is due and unpaid, except the sum of $11,05'7In considering what the case is as made by the complaint the averment of the delivery of the deed "of the 15th day of January, 1885, actually and unconditionally, and not in escrow,"must be regarded as merely a statementof the legal effect of what is alleged to have taken place between the parties on that day,-the request to plaintiff by defendant to accept $70,000 for thela.nd, and the promise of the defendant to doso,-and of the subsequent payments made by defendant in recognition of his obligation. The deed was'delivered December 18, 1883, and it must' be assumed

REP.Q:R'fER I' Y<>1.

45.

from the facts fromthaJ time the deed remained in theposl5ession of the defendant; otherwise the narrative in the complaint of place prio),' to January ,}'5, 1885, is wholly irrelevant. If tl!e, <:M!'I sta ted discloses a cause of action to enfor()e an executory agreethe fial of'lI,n, interest in land, the statute 'of frauds, which re' quires suchan agreement to be in writing, and subscribed by the party to be charged therewith, is a good T.heprovisions of this statute are in force both in the District of Columbia, where the agreementwllsmade, and in New Mexico, where the is situated. On if theagreementof:tbe15th day of January, 1885, was merely a modification of the pre-existing pecuniary liability of the deout 9fthe original copveyance to him, lltuddid not in jl.ffect', the title, to .the land, because the defendant had already acquire<il,8i complete title, the action can be sustained notwithstanding it 'was oral merely. A party who has fully performed an on his Pllt'tcatl 'recover the 'consideration promised by ,theoth'er, notwithstan.dillgthiragreement, while executory; would not be enforceable under tqe'lltatute of frauds. The latter canl10tset up the statuteas an ex:cuse. (or, not paying for :thobenent he has derived py: tb!3 other's perforniance;,butwhether"arecoverydn such a case can be ,had upon the was,the consideration{or the performanee, or only upon a quantumtmeruit,is a question upon which the authorities are not ,The logicaldoctrille would seem to be,that the party who has p!3rfQftned is entitled to;rl:)(:oyer upon a promise impli!3d. by law from the of the. bellefit to pal; :what it is worth. In Bro,wne, St. Erauda. §,12, the,Iaw, illJhus stated; 'i
"Wherira verbal cOnti-aet hl1$ been executed on 'one: by the conveyance Qf property QNheperfQl'ma:nceof services; the proper. form of action torethe value:of ,thepl'Qperty or senhie: is upon· the implied pr()wisearising impli\ldprOrnis68 bf'ingqot by the from feC()yerym,I,y 1I1aobe llpon an ,whrre the prllperty, orhavtng enjoyed the benefit of 'the serviceS', acknowledges'Ule' liability, and prolUlsest6pay the Bum Btipulatea." ", ,1':' '" ' ,

transaction however, alter the faetthat there wasadelivery of the deed, and an acceptance; by which the defendant acquired the legal title to the land, and' so effectually that he could only divest himself of it by a reconveyance. The rule is ancient and familiar that a the grantee. When there is a valid. deed cannot be delivery of a deed by the grantor to ,the grantee it is .]tu'possible to annex a condition to such delivery; and the delivery vests the title in the granit intention, of the parties., ," When tee l the words are contrary to the act which is ,the delivery thewords,a.re of none effect." Co. Litt. 36a. "If I seal my deed, and deliver it to the party himself to whom it is made, as an escrow upon certain conditions," etc., "in this case, let the form onhe words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently." Shep. Touch. cll-ses recogrlize the doctdne)"}llly, and apply it wherever'ihppeilTs 'that 'the gr.mtor intended to deliver and the grantee intendeq.,;to accept the a wghout further act on the part of the grantor. Worrall v. Munn, 5 N. Y. 229; Bracket v. BarnCJj, Y. 333; Bra1OOnv. Bingham,;26 N.,Y.<483; Hinchliff 'v'. 18.' Wis. 138j Ordinary v. Th4(chCl', 41 N'.;J.Law, 407." Although the de'ttindant'acquired the legabtitle to the land, by, theHdelivery of the deed, he did not acquire the equitable title; that remained in the plaintiff, because by the agreement expressed in the receipt the ant took the title only as a fiduciary to .gell the land for the plaintiff imd pay him the proceeds, or otherwise to reinveat him with the title. When the agreement of the 15th day of January, 1885, was made, the rights onhe parties' remained as theY. :were, when. the deflldjand 'arid receipt :were exchanged;; and the defendant 'Was the 'owner of the ilega.l title to the 1alldj:and, of; the ,equitable 'title. The:agt1e& .ment by; whi(lh\ ;promised to pay plaintiff $70,000 for the landitripliesithat b9th parties stillJshpposedthatthe legaLtitle wil.s in the plaintiff, and that no new conveyance from him was necessary traQsfer to.,the defendant) the: complete',title, legal and equitable, :N'evby parol; :and. ertheless,' the: eqUitable ,interest could. 'n6t be without a new deed, or afornial assignment or release of the plail1tiff's equitable :title, 1Jhe defendant could acquire nobetteditle to the lands than he had before, An oral agreement for the transfer of an equitable 'interest in lands is.as''inoperative under the statute:of fraudaas.one for ,the .transfer of a; legal title. It was said by Chief Justice MARSHALL in Hughes v. Moor6,7Crancb, 176: : : The perceive no distinction 'between the sale ofland to which a man has: onll,a.n.equitable title. and a sale. of land to wbich he has a legal Tbeyarej6quaUy within . . '. . ., ltfQUows, therefore. that the agreement which is nowsought,to be enforced iswoid :by the statute of frands.iItisstill exe6utdry on the part ofboth ,parties. The, defendant bas not received the .consideration for hil'! prOinisa.'. He has no better title] tQ the ·land sincetllan. he had 'befoll;'. Notwi.thstanding all thathaldaken place, including i ,the payBj:ents made' ;bythe..defendaIJ,t. in part 'fQlfillment of: the ,agreemeDt,.the

336

FEDERAL R.EPORTER,

vol. 45.

plaintiff still remains the equitable owner of the land. He can still resortto a; court of equity, and, upon tendering back what he has received, compel the defendant to reconvey, or, if the defenda:nt has sold the land to a bona fide purchaser, compel him to account for its value or the proceeds. If the defendant had paid the $70,000 according to his promise, the plaintiff would doubtless be estopped from setting up the invalidity of the.agreement. As it is, the agreement cannot be enforced by either party, and each is remitted, no.twithstanding, to his pre-existing rights. The demurrer is sustained.

MASSACHUSETTs & S. CONST,' Co.

t1.

CANE

CREEK

Th.

'(Oircuit Oourt, D. South OaroZina. February 25, 1891.) .MU1'IIOIPAL

Where township bonds are declared invalid by the courts, and the legislature aftan' act provialng for the payment of suoh bonds, the debt representedby the bonds is inourred at the date of suoh a o t . · ,

IImEBTBDNESS-TowNsmp BONDS.

,

, '

At Law. Simeon Hyde, for complainant. Ira B. Jonea, for defendant. SIMONTON, J. The bill. is brought to enforce the delivery of$19,OOO bonds·of the Cane Creek township, issued in aid of the construction of the Charleston, Cincinnati & Chicago Railroad Company through that township. The defendant rests on the unconstitutionality of this debt. The constitution of South Carolina, art. 9, § 17, (18 St. at Large, 690,) provides: "Any bonded debt hereafter incurred by any county, municipal corporation,of political division of the state, shall never exceed eight per cent. of the assessed value of all the taxable property therein." It is contended that $19,000 exceeds 8 per cent. of the assessed value of all the taxable property in the township at the date the debt was incurred. The first question, then, is, when was the debt incurred? The power of subscribing to the railroad was first inserted in the act D.ecember 21, 1883, (18 St. at Large, S. C., 365.) The exercise of the power was made in the vote oithe people of the township in June,1886. The bonds were executed and deposited with the Boston Safe Deposit & Trust Company as escrow 14th January;'1888. In Floyd v. Perrin, 30 S. C. '1, 8 S. E. Rep. 14, the supreme court of South Carolina decided (April term, 1888,) that township bonds;of this character, and issued under like authority, were invalid. In December, 1888, (20 St. at Large, S. C., 12,} the general assembly passed an act to provide for the payment of township bonds issued in aid: of railroads in this state. The supreme court discussed ,this act in Statev. Neely, 30 S. C. 604, 9 S. E. Rep.·